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How State Policymakers Can Encourage Drone Delivery Services and Aviation Innovation in Their States

Drones, or unmanned aerial systems (UAS), are being used and developed in several major industries in the United States. Drones are a mainstay in the hobbyist, toy, and venue markets, and soon they will be called upon to regularly deliver packages and critical healthcare and emergency supplies.

The use of drones has grown rapidly in the U.S., but regulations have not responded to the needs of industry, entrepreneurs, and hobbyists to allow their innovative ideas to come to life. To have a widespread and safe drone delivery economy, drones will in most places need “drone highways” demarcated by regulators and safely separated from airports, homes, schools, and other sensitive locations. 

Aviation and airspace management has long been considered a federal issue, but state policymakers have an important role to play in collaborating with the Federal Aviation Administration (FAA). Implementing the right policies can allow states to establish drone highways to protect operators from trespass, nuisance, and takings lawsuits. With some reforms, states can greatly reduce legal uncertainty and risks, allowing innovative products and services to take flight in their states.

Which States Are Prepared for the Drone Industry?

In January 2021, Mercatus released its latest 50-state drone policy scorecard that ranks all 50 U.S. states and Puerto Rico on their preparedness for the drone industry. Five factors are considered important for the establishment of drone highways and general drone preparedness:

  1. Airspace lease law: Drone highways must be demarcated by regulators and safely separated from airports, homes, schools, and other sensitive locations. Leasing airspace above public roads and property would accelerate drone services because creating flight paths over backyards and private lands raises issues about the taking of private property. Leasing the aerial corridors above public roads would not only prevent lawsuits from property owners but also would let states tap into income from a currently unused public resource. Over one-third of states currently allow state or local authorities to lease airspace above public roads and public property. There are many variations of these road airspace leasing provisions.
  2. Law vesting air rights with landowners: This clarifies that the state is exercising its police powers and defining property rights—and puts drone operators and residents on notice about the extent of those rights. Where state or local authorities own public rights-of-way, air rights laws recognize their property interest in the aerial corridors above public roads.
  3. Avigation easement law: This allows drones to operate as long as they are high enough not to bother landowners and passersby. If the state or municipality does not own aerial corridors above public roads, drones can still generally access the aerial easements if state officials demarcate drone highways above public roads.
  4. Drone task force or program office: A drone advisory committee is a broad-based, long-term state advisory committee that provides the state department of transportation (DOT) with advice on key UAS integration issues by helping to identify regulatory challenges and communicate with stakeholders. These bodies help anticipate (and address) issues such as zoning rules, noise limits, time-of-day restrictions, insurance, and privacy for private dwellings.
  5. Drone jobs estimate: The number of drone jobs per 100,000 residents is a proxy for soft factors (e.g., a college offering drone programs or workers in the aerospace industry) that can position states for future jobs and services growth.

Click on the map below to explore an interactive map that will show you the full state profile, with details about its laws and drone industry scores. Download Puerto Rico's profile (PDF). 

 

If you'd like to schedule a consultation with one of our scholars on drone policy, email our outreach team. 

Frequently Asked Questions

The answers to frequently asked questions about state drone policy are provided below and  are available in a PDF.

Are Drone Operations Purely a Federal Matter?

No. Whereas states and cities have no authority over what happens in airspace hundreds or thousands of feet in the air, they have authority over drone infrastructure on the ground and over surface (that is, low-altitude) airspace.

The FAA recognizes, for instance, that states have authority to regulate drone operations on the grounds of trespass, privacy, and zoning. In 2017, the USDOT established several drone pilot programs to allow states, cities, and tribal governments to experiment with regulatory regimes for drones. Federal regulators anticipate that some authority over drone management would fall to state and local authorities as drone operations proliferate.

Does the Federal Government Own All Airspace?

No. The federal government does not own the nation’s airspace. A federal court in 2020, for instance, rejected the arguments by drone operators that only the federal government can regulate surface airspace. This common misconception that the federal government owns all airspace arises because there is a federal law noting the US government has “exclusive sovereignty of airspace of the United States.” As the Supreme Court has held, this statute refers to sovereignty against other nations, not against the US states.

On the contrary, the Supreme Court maintains  that landowners own the “immediate reaches” of airspace above their land. State governments and courts have not firmly established where the “immediate reaches” end. However, it is clear that landowners—including residents, state and local agencies, utility companies, and railroads—own the surface airspace and right-of-way easements above their land. 

What Can State Policymakers Do to Bring Drone Services to Their State?

Drone airspace use involves a mix of federal, state, and local authority. State officials should, in collaboration with the FAA, create the following resources.

Drone Program Offices

States should create drone program offices within the state department of aviation as eight states have done. These program offices can serve as a one-stop shop for drone operators in the state to comply with state and local rules. The program office can also serve as an advocate for operators in the state to federal regulators and recruit companies to their state.

Drone Easements

State DOTs manage more than 8 million miles of roadways and rights of way. Many states and cities have laws that allow regulators to create and lease “avigation easements”—corridors of airspace—to private companies. States should use these laws and collaborate with the USDOT and industry to lease avigation easements to drone companies. Permitting drone operations above private land exposes the state or locality to takings lawsuits—drone easements above private roads eliminate that liability and financial risk.

Drone Sandboxes

Drone sandboxes are designated areas and aerial routes—created by regulators—away from airports and other safety hazards where drone operators are invited to test their services. They allow startups and local companies to fly real operations in order to improve their services and to show proof of concept to investors.

What Mercatus Research Says About Drone Policy

Peer Reviewed Research

Full list of Mercatus drone policy briefs

Testimonies and public comments

Federal 

State

Other Helpful Links and Resources